COVID-19: Sixteen Counties and Three Cities in California Under Shelter In Place Order or Directive

UPDATE – April 30, 2020

On March 19, 2020, California Governor Gavin Newsom issued an Executive Order requiring Californians to “stay at home or at their place of residence” until further notice except as needed to maintain continuity of 16 infrastructure sectors – set forth here – identified by the federal government as vital to the security, public health, and safety of the United States. Governor Newsom’s Order comes on the heels of “shelter in place” orders and directives issued by nineteen counties and four cities, including San Francisco, Alameda, Contra Costa, Marin, Santa Clara, San Mateo, Santa Cruz, Orange, Sonoma, Solano, San Luis Obispo, Napa, San Benito, Monterey, Sacramento, Lake, Mendocino, Los Angeles, Yolo, Fresno, Palm Springs, Long Beach and Manteca. Consistent with the local shelter in place measures, Governor Newsom’s Order aims to mitigate the spread of COVID-19 by ensuring people self-isolate as much as possible while still allowing for essential services to continue.

“My fellow San Franciscans, what we are asking for everyone to do is to remain at home for all but the most essential outings for your safety and the safety of those around you.” ( ~ San Francisco Mayor London Breed speaking at a news conference Monday)

In an unprecedented move, sixteen counties and three cities in California have issued “shelter in place” orders or directives, which will last anywhere from March 17, 2020 through May 31, 2020. The sixteen affected counties are San Francisco, Alameda, Contra Costa, Marin, Santa Clara, San Mateo, Santa Cruz, Orange, Sonoma, Solano, San Luis Obispo, Napa, San Benito, Monterey, Sacramento, and Yolo. The cities of Fresno and Berkeley have also issued shelter in place orders. The State of California issued a statewide order on March 19, 2020. The orders aim to limit the spread of COVID-19 by ensuring people self-isolate as much as possible while still allowing for essential services to continue. The first such order issued was from San Francisco County and took effect as of Midnight on March 17, 2020 (the order is attached). The other counties and cities have followed with similar orders and directives.

In brief, residents of each county or city must remain at home. Gatherings outside the home are generally prohibited, with certain exceptions for essential activities (e.g., healthcare, grocery shopping, etc.), essential travel, to perform work for essential businesses (e.g., healthcare, grocery stores, etc.), to perform work for governmental activities or to perform essential infrastructure work (e.g., testing, housing, etc.). However, these limited circumstances where people may interact with one another include the requirement to observe the past COVID-19 protocols (“social distancing”) such as staying 6 feet apart, not going to work if you are ill, and frequent washing of hands. There are exceptions to the Orders and other details worthy of note as highlighted below:

Exemptions. Individuals may leave their place of residence to:

1. Operate an Essential Business, which includes:

Healthcare operations, including home health workers;
Essential Infrastructure, including construction of housing and operation of public transportation and utilities;
Grocery stores, farmers’ markets, food banks, convenience stores;
Businesses that provide necessities of life for economically disadvantaged individuals and shelter facilities;
Pharmacies, health care supply stores, and health care facilities;
Gas stations and auto repair facilities;
Banks;
Garbage collection;
Hardware stores, plumbers, electricians, and other service providers necessary to maintain the safety, sanitation, and essential operation of residences and other essential businesses;
Educational institutions, for the purposes of facilitating distance learning;
Laundromats, dry cleaners, and laundry service providers;
Businesses that ship or deliver groceries, food, and goods directly to residences;
Childcare facilities providing services that enable essential employees to go to work;
Roles required for any Essential Business to “maintain basic operations,” which include security, payroll, and similar activities.

Further, the Orders include certain professional services as “essential business” (e.g., Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities).

Also – all businesses are allowed to continue “minimum basic operations” per the following provision:

For the purposes of this Order, “Minimum Basic Operations” include the following, provided that employees comply with Social Distancing Requirements as defined this Section, to the extent possible, while carrying out such operations: i. The minimum necessary activities to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for related functions. ii. The minimum necessary activities to facilitate employees of the business being able to continue to work remotely from their residences.

On March 31, 2020, eight Bay Area counties—Alameda, Contra Costa, Marin, Santa Clara, San Francisco, San Mateo, and Sonoma—amended their original shelter-in-place orders to run through May 3, 2020. The amended orders identify new “essential businesses,” including:

Services providing residential transactions (notaries, realtors, title companies, etc.)
Funeral homes/cemeteries: funerals are limited to no more than 10 people
Moving companies
Rental car companies
Ride service companies to the extent used by people to do their permitted essential activities (shopping, going for medical care, etc.)

The amended orders also include new requirements:

Essential businesses must maximize the number of people working from home, scale down their operations to reflect only their essential operations, and have social distancing protocols in place by April 3, 2020
Essential businesses that sell food, groceries or cleaning products with non-essential products may continue to operate only if the portion of essential products they sell is a significant part of their business
Most construction – including residential and commercial – is prohibited. Construction that is permitted includes healthcare projects to address COVID-19, housing/mixed use projects with 10% affordable housing, projects involving vulnerable populations and projects directed toward safety, sanitation and habitability of residences and commercial buildings
Businesses that supply products needed for people to work from home are no longer considered essential businesses
Recreational areas are closed to the public (beaches, playgrounds, parks, public pools, dog parks, etc.), shared recreation facilities are closed for recreational use (golf courses, tennis and basketball courts, etc.), sports where equipment is shared (i.e., soccer, basketball, etc.) must be limited to the same household, and while people can leave the home to walk the dog, exercise, etc., these activities must be done near the home.

On April 29, 2020, six Bay Area counties—Alameda, Contra Costa, Marin, San Francisco, San Mateo, and Santa Clara—and the City of Berkeley extended their original shelter-in-place orders to run through May 31, 2020. Effective May 4, 2020, the extended orders include the following revisions:

All construction activities are permitted, subject to the State’s Shelter Order and compliance with safety protocols
All real estate transactions may resume, with continued restrictions on home viewings (virtual or in-person if no more than 2 visitors at a time and no home occupant is present). Individuals are also allowed to move residences.
Childcare programs may resume, as long as facilities ensure that groups consist of no more than 12 children and there is no crossover between child groups
Certain outdoor businesses, such as nurseries, landscaping services, and gardening services, may resume. This does not include restaurants, cafes, or bars that may have outdoor seating.
Some outdoor facilities for recreational activities may reopen, such as golf courses and athletic fields.

Individuals and businesses remain required to comply with social distancing guidelines. Napa County has also issued a similar order allowing for the above activities to resume, which runs indefinitely.

Key FAQs:

What activities are exempt from the Order?

“Essential activities,” include:

Essential travel (e.g. travel relating to “essential activities”, “essential businesses”, or “minimum basic operations”)
Activities that support “essential businesses” (e.g. healthcare operations, first responders, grocery stores, convenience stores, media services, gas stations/auto-repair facilities, banks and related financial institutions, shipping services)
Activities that support government agencies, restaurants providing delivery or carry out services, and certain professional services, such as legal or accounting services, when necessary to assist in complying with legally mandated activities
Activities that support essential infrastructure work, including public works construction, housing construction, airport operations, water, sewer, gas, electrical, oil refining, roads and highways, public transportation, solid waste collection and removal, internet, and telecommunications systems.

Are non-essential businesses required to end their activities?

No. Businesses are not ordered to go out of business. If you are not an essential business and have a facility within any of the affected counties, you may continue “minimum basic operations,” which include performing activities necessary to maintain the value of the business’s inventory, ensure security, process payroll and employee benefits, or for functions related to this list. You are also permitted to conduct the necessary activities to facilitate employees of the business to be able to continue to work remotely from home. You must, however, observe the past COVID-19 social distancing protocols.

What can your employees do if they cannot work or their hours are reduced?

The California Employment Development Department (CEDD) is advising that employees who cannot work or who are experiencing reduced hours due to COVID-19 may apply for disability insurance or unemployment insurance. The CEDD’s guidance is available here.

How long are the Orders in place?

The orders issued in San Francisco, Alameda, Contra Costa, Marin, Santa Clara, San Mateo, and the City of Berkeley were extended on April 29, 2020, to run through May 31, 2020. The County of Sonoma’s Order was extended on March 31, 2020, to run through May 3, 2020. Santa Cruz, San Benito, Monterey, currently run through May 3, 2020. Solano runs through May 17, 2020., Yolo currently runs through May 1, 2020. The order issued in Fresno County currently runs through May 6, 2020. The order issued in Sacramento County runs through May 22, 2020. All of the orders could be rescinded earlier or extended.

How will the Orders be enforced?

Law enforcement (the police and local sheriff) is tasked with ensuring compliance with and enforcing the Orders, and violation may constitute a misdemeanor. However, local officials have indicated that they do not want to resort to criminal liability unless flagrant violations are observed.

In summary, it is important for all businesses to take additional steps now in Order to mitigate their risk of suffering negative impacts from COVID-19. For more information about recommended steps, please contact your Foley relationship partner. For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the CDC and the World Health Organization.

Foley has created a multidisciplinary and multijurisdictional team to respond to COVID-19, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form.